2012 Q&A Archive

 

 

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If we sell an ITAR product under an FMS sale, when it comes time to return the product for repair/overhaul what do I need to do regarding licensing or exemption use to get the hardware in and returned. Assuming I use the TAA as authorization for the defense service.

There are many ways to approach this and I cannot tell you the best way without more fact.  ITAR 126.6(b) is the FMS exemption for transfers of defense articles and defense services covered y an FMS contract "during the period which the FMS Letter of Offer and Acceptance (LOA) and implementing USG FMS contracts and subcontracts are in effect and serve as authorization for the transfers hereunder in lieu of a license."  The transfer has to be made by the foreign government or its authorized freight forwarder. 

If what you want to do is not authorized by the FMS exemption, then you may look at the 123.4 temporary import exemption.  If it is coming in from Canada you could look at the Canadian temporary import exemption 126.5(a) to bring the hardware into the US and return in conjunction with the Canadian defense services exemption 126.5(c), the allies maintenance exemption 124.2(c), or a TAA to authorize the defense service involved in providing the repair/overhaul services.  Another alternative would be a DSP-61 for the hardware movement plus a separate authorization for the defense service.


We have been contacted to provide a defense service on a foreign origin air craft. We will get the TAA for the defense service but do I need a DSP 61 to bring in the air craft or can I use the TAA as my import/export vehicle for the hardware?

You likely need a DSP-61.  But, I never know what a TAA authorizes unless I read the TAA.  If your TAA explicitly authorizes the temporary import and return of the foreign origin aircraft, you may use your TAA.  Most TAAs do not authorize that.


Does ITAR require that a company that manufactures 'defense articles" have all visitors US and Foreign checked on the BIS Denied Person List?

No.  The ITAR does not require screening of all visitors, US and foreign. 

Since you did not tell us if you are in the US and you did not identify the origin and nature of your defense articles, we have to make this answer generic.

The key issue is whether you will do an activity subject to ITAR restrictions, such as export, reexport, retransfer.  If a visitor comes to your facility to change the light in the conference room just inside the front door of your facility and has no access to defense articles, it is unlikely that person will be doing something subject to ITAR restrictions.  If you fail to screen, you probably are ok.

If you plan to give the person ITAR-controlled technical data, it would be prudent to determine the person's nationality and, depending on the circumstances, screen that person. 

In all cases, you could choose to reply upon luck instead of screening, but I do not recommend that.

So, companies implement a wide range of visitor policies involving determining the nationality of a visitor and screening visitors against the various prohibited parties lists.  Some US companies only screen foreign person visitors.  Some US companies screen all visitors.  What you decide to do has to be based on your assessment of your situation and the resources you have. 

Another issue is that you referred to only one of the many US Government prohibited parties lists that you should be using.  The exact rules applicable to the various lists differ somewhat, but if you screen, you should screen against all of the lists.

There is no one-size-fits-all approach.


Does ITAR require that all visitors US and Foreign sign an NDA?

No.  The ITAR does not require that all visitors, US and foreign, sign an NDA.

Once again, we lack a lot of details here.  Generically speaking, it is difficult for me to think of a case where the ITAR itself requires an NDA other in some cases the use of an exemption may require an NDA-type document.  Certain DDTC-approved licenses or agreements may require NDAs.

Certain companies use NDAs as part of their internal procedures either because they are required by the ITAR, a license, or an agreement, or because the company wants to get them even though they are not required.


We are in the UK and incorporate an ITAR-controlled camera assembly (VIIc) into our end-item. In a particular instance, the item is licensed only for 'our use and evaluation' (we are quality testing a new product line).

The next licenses will request use for 'trials and demonstration' by named end-users, but in the meantime is there anything to stop us demonstrating our kit on the current license, given that we will retain possession and the people being demonstrated to will have no access to, or control of, the ITAR part directly, but will see its functionality in the context of our kit?

This is a close call.  You may do only what the approved license says you may do.  If it says you may incorporate the camera for your use and evaluation, then the license does not authorize you to do a demo of the camera for someone else’s evaluation.  

You may submit a GC requesting retransfer authorization to change the end-use so you may do what you wish to do with this camera. 

For future US license application, you should give the applicant an end-use description that includes all the things that you want to do, such as the type of demonstration you had hoped you could do under the approved license in question.


I have some questions about Country Groups.  Some are in multiple Groups and then some are in one and there are like 4 parts and there is an X in some of the fields so does an X mean no or what? A good example is Cuba if you can explain that one this would be great.

Some countries are in more than one country group.  For example, Cuba is in country groups D:2, D:3, E:1, and E:2.  Cuba is not in country groups D:1 or D:4 because there is no X in the D:1 or D:4 columns. 

Many countries are in more than one country group.  Argentina, for example, is in country groups A:2, A:3, A:4 and B.

If the EAR says you can do something for Country Group B, then you can do it for Argentina because it is in Country Group B in addition to other country groups.


9A991 when I look at the ECCN number it states controlled for AT and UN applies to 9A991.a. What does UN mean?  It is not on the country chart.  If I was asked what 9A991 is controlled for can I just say Anti-Terrorism (AT)?

UN = United Nations Embargo.  When an ECCN has UN controls it usually specifies those controls in the ECCN, which is the case in 9A991.  To determine exactly what UN controls apply to a country named as being subject to UN controls, normally you go to EAR Part 746.So, for 9A991.a destined to Rwanda; you would go to 746 and look at the Rwanda rules in 746.


Do you have to keep all email correspondence for NLR to Canada and to everywhere else as well in regards to export documentation?  My company does not and wanted to know for sure.

EAR Part 762 generally requires that you keep all records related to all exports, including EAR99 exports to Canada.


Are fuel filters on the USML? I did not find them there.  In your lecture I just have them down as components to a military item so if for a military item would you be able to assign this and USML number or no? Also if going to China would the Military End-Use Rule require a license or would it be a violation of trading with the enemy act? 

The words "fuel filters" and "pumps" may not be in the USML, but there are many categories in the USML that control parts, components, etc.  Specially designed or modified for something names on the USML.  So, a fuel pump specifically designed for a military aircraft and a fuel filter specially designed for a military aircraft could be controlled in paragraph VIII (h) on the USML.

The China military end use restrictions depend on the ECCN of the item.  If the item is not in an ECCN listed in the China military end use rule, then the rules do not apply.  For example an EAR99 fuel filter may go to a military end use in China as NLR.


Does each TSU, CIV and LVS all depend on the Export Classification Control Number or none of them?

The ECCN of an item may impact its eligibility for those license exceptions.


How long are EAR licenses good for?  I know DOD licenses are good for 10 years but would like to know for EAR licensing and if you go by approved date or expiration date?

BIS licenses are good for approximately 2 years and expire on the expiration date shown on the license.


I have a question as to how a foreign produced product is classified in the event it needs to be returned to the country of origin for repair? Since we may not have access to the specifications and the foreign manufacturer has no idea what an ECCN is, what is the solution if the product has to be temporarily exported?

It is difficult to classify an item that you have not manufactured because you might not have the technical details or in-house technical experts that a manufacturer would have.  Unfortunately, the EAR does not give you any relief. 

One approach to determine the ECCN is to try to find the paragraphs in the CCL that might apply to your item.  For example, if I am classifying a camera, I would look at ECCNs 6A003, 6A203, 6A993 and 6A002 (as it relates to 6A003), and extract from the list of items controlled the paragraphs that might apply to the camera.  I would then put those paragraphs in an email to the foreign manufacturer.  I would as the foreign manufacturer to tell me which of the paragraphs in the list apply to the camera.  Even if the foreign manufacturer does not know ECCNs and the CCL, it will have the technical details required to determine which paragraphs apply.  Once I get that reply from the foreign manufacturer, it (usually) is fairly easy to determine the ECCN and paragraph. 

FYI, in some cases, the precise ECCN might not matter because you may be able to use 740.9(b)(3) in License Exception TMP to export the foreign origin item back to where it came from.  You still would have to know enough about the item to make sure your item is not excluded from eligibility by 740.9 or 740.2.


I have a customer located in Bedford MA that bought product form our company and they want us to send it to their customer in France. Is this considered an export even if the customer in MA (USA) is paying for the shipping.

Yes this is an export.  If you are the party in control of the shipment leaving the country you are the exporter and responsible for compliance.


We’re exporting a software with an ECCN of EAR99 item and an item with ECCN 5D002. In the US we would typically use - NLR for license exemption. What will be the equivalent of these exemption codes in the UK?

The EAR does not have "license exemptions."  The EAR has license exceptions and it has NLR, both of which indicate your export does not require an export license.

 The UK regulations have some similar export authorizations.  For example, the UK has export licenses, Open Individual Export Licenses, and Open General Licenses.  For more information go to UK Government BIS website.


Is a US company subject to ITAR regulations and compliance if they bring vetted US citizens over to Australia to work as consultants for the Australian Department of Defense in order to provide guidance on areas such as Risk Management, Security Assessment and Training or is such a company exempt given the new/upcoming Defense Trade Cooperation Treaty?

Someday the new treaty might change things, but it is difficult to predict the future.  If and when the US changes the ITAR to implement changes for Australia, we can look at the new rules.

Under the current situation, the key question is whether you are providing a "defense service."  I cannot say whether you would be providing a defense service without knowing all the details of what they will be doing. 

I suggest you find out the details of everything they will be doing and see if anything they do is a "defense service," as defined below.  If you will be providing a "defense service," you like will require authorization (an agreement or a license) unless an exemption is available.

§ 120.9 Defense service.
(a) Defense service means:
(1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles;
(2) The furnishing to foreign persons of any technical data controlled under this sub chapter (see § 120.10), whether in the United States or abroad; or

(3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence
courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.


 

My company wants to export software services to a USA based company for which the US Based company is asking for an Export Compliance Certificate to USA. What do I need to do?

I have never heard of something called an Export Compliance certificate to USA.  I suggest you ask them what they are talking about and ask them to tell you the specific regulations or laws that cover it.


Is there an acceptable downloadable form that states that we are not shipping export controlled items out of the country?

I do not know of any such form.  I am not sure what you mean by acceptable.  There is no US regulatory requirement for such a form.  If you give us an idea of what you would like to communicate in the form, we might be able to suggest some words to use.


This is similar to another question, but after reading Part 129 of the ITAR I am still a bit confused. We have sales representatives worldwide that do not work for our company but have commission-based agreements with our company (brokers, by definition in the ITAR). These representatives help us sell our ITAR and non ITAR-controlled products. All these representatives overseas are not U.S. Persons. Do these foreign persons have to register with the DDTC as brokers?

If they meet the ITAR definition of broker, they have to register.  The rules apply to foreign persons as well.  The mere fact that they are sales agents is not enough to determine if they meet the definition of broker.


My company is incorporated in a Middle Eastern country with very close ties to the USA. We provide military training that clearly falls under sec. 120.9. Because the company is a "foreign person" it cannot obtain a TAA. Our problem is that several instructors and management are U.S. persons. Would a General Correspondence letter for the company cover its employees so that they do not need TAAs individually?

I am not sure if a foreign person outside of the United States is covered by "defense service" as defined in ITAR 120.9.  I do not know all the facts so I cannot say one way or another but I suggest you take a close look at that.  Having an American president of your Middle Eastern company does not automatically mean that 120.9 applies when you do military training.  The scenario you raised is one of the many areas where the ITAR is not clear--different people see your issue in different ways.

(Note:  The proposed change to 120.9 would address this issue more clearly and would make it more likely that what you are doing is not caught by 120.9.)

In any event, if in the course of the activities in question, you retransfer technical data subject to ITAR jurisdiction, the retransfer may require authorization even if you are not caught by 120.9.  I suggest you use a General Correspondence letter to request any required ITAR authorization.


What exact U.S. restrictions apply to an entity included in the US "entity list"? In particular what kind of ban of export privileges: denial of export license? De minimis calculation (10% or 25%) if this entity is located in Europe?

 Where can we find the notification of BIS further to the addition of a company in the US Entity list? Can we know the reason why it has been added to this list?

The Entity List imposes additional EAR license requirements on specifically identified persons (individuals as well as legal persons like businesses and other entities) which BIS believes are acting contrary to US national security or foreign policy interests. Export, reexports and in-country transfers are all subject to the identified license requirements. The exact license requirements vary based on the entity. For some entities, all items subject to the EAR trigger a license requirement. In other cases, EAR99 items may be permitted without a license, though BIS warns that the transaction with a listed entity should still be treated as a red flag.

Entity List license requirements do apply to reexports of non-US made items subject to the EAR as a consequence of the de minimis rule. Whether the 10 percent or 25 percent de minimis threshold applies depends upon the country where the entity is located. For example, the shipment of an item made in Belgium containing 15 percent US controlled content to Serbia is not a reexport subject to the EAR. This continues to be the case even if the recipient in Serbia is on the Entity List.

You can register for email notifications from BIS, including updates to the Entity List at https://www.bis.doc.gov/forms/email notification.htm. BIS does not generally make public the reason why a person is added to the list, though this can sometimes be inferred from public sources.


Do you know if there is more up-to-date information on nano-technology than the article “Dual-Use Export Controls on Nanotechnology” in the Spring 2008 issue of Nanotechnology Law and Business? We have a potential licensing agreement with a Japanese organization.

The most up-to-date information is in the current EAR and ITAR. Nanotechnology is a broad term that includes items that require ITAR exports licenses, EAR export licenses and items that require no export licenses. The requirements and restrictions depend on the nature of what is being exported, the parties and countries involved and the activities involved.


Are there export controls on EAR items sent from a US company to its own subsidiary in a foreign country?

Yes. For the most part, the same export controls apply when a company exports items from the United States to its foreign subsidiary as when it exports to other parties. There are a few limited exceptions here and there such as EAR encryption exports to affiliates and ITAR temporary exports to subsidiaries.


Do you need to do an AES filing for TAA's or deemed exports? I am getting different answers on this question. According to the Census Bureau, AES filings occur on physical items, not technical data. Any information is appreciated.

1) For deemed exports under a DSP-5: See ITAR 123.22(b)(3)(i)

  • DSP-5 technical data export license is retained by the exporter and the applicant must report the shipment to DDTC.
  • The Applicant must self-endorse/validate the license when the data is exported, and after all of the technical data is exported, return endorsed license to DDTC.
  • See example report below.

2) For exports under a TAA: See ITAR 123.22(b)(3)(ii) –

  • The applicant must notify DDTC prior to the initial export. No other reports are required unless you export technical data via a US port (e.g., sending paper documents by courier).
  • See example report below.

Example Data Report (keep it simple and cite the ITAR paragraph that requires reporting):

DDTC
Attn: Technical Data Export Notice Pursuant 22 CFR 123.22(b)(3)(ii)

Ladies and Gentleman:
Pursuant to 22 CFR 123.22(b)(3)(ii) and the interim www.PMDDTC.state.gov web guidance as posted in March 2009, we hereby provide notice of the first shipment of technical data under DDTC approved TAA 1234-56. The shipment occurred on May 23.
Feel free to contact us if you have any further questions.


Can the foreign signatories continue to exchange amongst themselves controlled data that they have received under a TAA, after this TAA has expired?

The activities authorized by a TAA may not continue after the TAA expires unless there is another ITAR authorization for such activities.


Our company makes very simple circuit cards using commercially available processes. Occasionally a military customer will send us a drawing with an ITAR marking (the only reasons seems to be a reference in the drawing to higher level assemblies).

We are only in the US, we only have US persons working on the parts. We keep all ITAR files safe, segregated, and in house. We never export products. These ITAR products only go to the US defense customers who order them.

Is it really required to register in this case - no export and simple common commercial processes - but made for a military use?

The ITAR requires that all parties who manufacture hardware "defense articles" register with DDTC, regardless of the value or significance of the "defense articles" being manufactured. While we cannot determine with certainty whether the items you are making are, in fact, "defense articles" without knowing more details about the items, it sounds like they are.


In your blog Mrs Anna Barone July 13th, 2011 at 2:11 pm posted updated guidelines for DSP-73 and DSP-61 License Applications.

My question is: Our government that is the end user wants to bring ITAR controlled items into US bases and ranges for a joint exercise with other nations including USAF. We will carry the ITAR items on our own aircraft and will always have the possession of the items at the base. The items will not be transferred to any other user. Do we still have to have a license to temporary import the items?

Anna Barone wrote:
DSP-61 – Temporary Import License Applications: Return to Country of Origin (22 CFR 123.3(a)(1))

For transactions relating to military exercises at U.S. bases/ranges, the license application must be supported by documentation from the foreign government identifying the participation of the foreign country in the exercise. The license application must specifically identify the name of the military exercise. These application types should be submitted by a foreign embassy on behalf of their military. Any exception must be explained in a letter of explanation describing the circumstances.

If you will bring the defense articles into the United States you still need to get the DSP-61, even if you are doing it as part of a program for your government.


Retransfer of equipment under the ITAR has been approved and given authorization to ship to the new end user. The new end user is attending training courses in the UK to configure the equipment.

Does this warrant an amendment to the original TAA to include the new end user? Or would a (GC) General Correspondence requesting approval for the new end users to have access to technical information on the training course suffice?

This is difficult to answer without seeing the full scope of what the TAA approves.  Here are some key points:

  • If the US TAA applicant is doing the training course in the UK, that should be covered by the TAA.
  • If a UK party is doing the training using US ITAR technical data received under the TAA, that could be covered by an amendment to the TAA or by a GC requesting authorization.  The first approach is probably the better, but if the US TAA applicant does not want to amend the TAA, the UK training party could submit the GC.

 


I have just joined a UK subsidiary of a US based company. We are working on a US Military project, manufacturing assemblies using UK and US technology and have appropriate approvals (TAAS, MLAs etc.) in place. We are also incorporating UK produced COTS products, that have not been modified in anyway, into the higher assembly. Please advise if the UK, unmodified, COTS components then become subject to ITAR? If so, does the classification of ITAR remain against that component if that part is removed from the higher assembly?

The ITAR applies to items produced in the UK if the items:

  • Contain any ITAR controlled content;
  • Were produced using ITAR controlled technical data or defense services; or
  • Are specifically mentioned and restricted in any DDTC approval (e.g., license, agreement).

For example, if you purchase standard bolts designed for automobiles and made in the UK, the ITAR does not apply to those items even if you plan to install them in a US battle tank. So, you may send such bolts to other countries without ITAR reexport/retransfer requirements.


I was born in Hong Kong which was a British dependent territory. I held British (Overseas) nationality until 2012 when I became a British citizen. I lived in the UK since 1989. I worked for a company which regularly handles ITAR products. I have been told that I cannot handle ITAR data without an approved TAA as I classify as a dual national due to my place of birth. Since I was born in a British dependent territory, do I have a case to get my ITAR restriction lifted?

The ITAR does not say how we should determine the nationality of a human being. DDTC has refused to address this in the ITAR. What you have been told is not an unusual company approach to defining your nationality. If you work for a UK company and want access to defense articles and defense services it receives under TAAs, there are 3 options to get you authorization to access those defense articles and defense services:

1) Ask the TAA applicant(s) to add Hong Kong as an authorized nationality under their respective TAA(s);

2) Your company implements procedures to use the 126.18 exemption for your nationality; or

3) Your company sends in a General Correspondence application to DDTC asking DDTC whether you may be treated as a UK-only national and, if DDTC says not, then in the same GC asking DDTC to grant authorization for you to have access to the pertinent defense articles and defense services.


I am presently employed by a company in Saudi Arabia that does Military Aircraft Engine Overhaul work. At present the plant works on or will begin work on P&W F100, PT6, MTU/Rolls-Royce RB199 (specific Modules) and Rolls-Royce T56/501-D22A Engines. My question is: If we have visitors, of any Nationality, is it necessary to cover Engines in various stages of Assembly/Disassembly? Is it necessary to cover Proprietary tooling? We require that all visitors be escorted at all time and do not allow photography or note taking of any kind including sketching, measuring etc. This has been a point of confusion for some time so thought I would try to find out once and for all.

The key ITAR issue is you may not transfer/reveal/release ITAR technical data to unauthorized persons--this includes, visual, oral, document and any other form of tech data transfer. It is key that ITAR controlled tech data is involved. Without knowing the nature of your facility, your visits, your visitors, etc., we cannot tell you exactly what to do, but we can frame the issues for you.

Let's assume you are working on an ITAR-controlled engine.

If you take a foreign national visitor up to a work stand where engine resurfacing is going on, that visual observation likely would involve the transfer of ITAR technical data plus anything you say about what is going on could involve ITAR tech data--you need to get approval for that or prevent it from happening.

If someone is standing in your factory and from 50 meters (150 feet) away the visitor sees the same thing, then in many cases the person would not be close enough to receive/obtain ITAR technical data about the coating process from what it sees. (Of course, you could still have issues related to the oral transfer of ITAR tech data, document transfer, etc.)

At the end of the day, it all comes down to what the visitors see, hear, observe, receive, etc. Some companies, for example, have certain areas of their factories where they can take foreign national visitors and other prohibited areas.

The ITAR does not prohibit the release of information that is not ITAR technical data such as "public domain," "basic marketing on function and purpose," "general system descriptions."

So ultimately, to compliment the procedures you have in place, you may wish to either develop specific guidelines for all areas of your facility or when your export compliance group approves a visit it first understand what the visit will involve and then it issues a specific visit approval that says what may happen and what may not.


When is a signatory on someone else's export license or export agreement necessary or beneficial?

Your question is extremely general and open ended. The answer for your situation depends on the facts of your situation: what country are you in, what do you want to do, what defense articles and defense services are involved?

In most cases, you cannot be a signatory on some else's export license.

Agreements do have signatories. It generally is useful to be a signatory on someone else's agreements when you need to have direct contact with the applicant for purposes of exchanging technical data and receiving defense services. "Sublicensees" as defined in the DDTC "Agreement Guidelines" (which means they are not signatories) may not receive tech data or defense services directly from the applicant.


Can we use a foreign company’s letter stating they will comply with all US DOC/BIS regulations in lieu of end use statements for EAR-99 items? The company claims hundreds of other US companies accept this.

The EAR generally does not require that you obtain end-use statements for EAR99 so I assume your company has put in place a policy to require end use statements. Your company may implement that optional compliance procedure if it wishes. Your company should further develop its policy and procedures to address the question of whether it will accept other assurances in lieu of the end use statement.

In deciding whether to accept the letter, you have to evaluate the risk factors such as the nature of the foreign company and its activities, sensitivity of the products/technologies involved, countries involved, and presence of any red flags.


Company X is registered with an ITAR status and they comply with the regulations and only employ local born local citizens in the country of production and shipping. Company X outsources work to company Y. Company Y is not ITAR registered but do the regulations extend automatically around company Y as a third party? If so, is this stated anywhere in US export regulations?

You did not give the details of what is involved in the outsourced work but we can tell you the following: 122.1(a) of the ITAR requires that any party that exports or manufactures defense articles or furnishes defense services must register with DDTC. So if company Y makes defense articles for company X, then company Y must register unless it meets one of the exemptions (e.g., company Y's only ITAR relate activity is the production of ITAR controlled technical data). The ITAR extends to all parties who engage in ITAR regulated activities.


We are purchasing military equipment from suppliers worldwide and they will arrange to ship those goods we procured directly to our customer end-user. We have not yet confirmed that we will procure these items from these suppliers and have not yet asked for confirmation if they are subject to ITAR.


If they are subject to ITAR and we procure from these suppliers and they deliver their products which contain ITAR, does this mean that we, as a prime or non-prime contractor, will be a broker and does this relate to brokering activities?

A lot of details about your activities would be required to answer your question with a definite yes or no.  Here are two important points that should point you in the right direction:

  • If you are a "US person" and you facilitate the sale of transfer of "defense articles" on behalf of another person you must register as a broker.
  • If you are a "foreign person" and you facilitate the sale or transfer of "defense articles" subject to ITAR jurisdiction on behalf of another person, you must register as a broker.

Under ITAR Laws and Regulations, what is the status of a US Person working for a foreign company? Are they still considered a US Person or are they now considered a Foreign Person?

In the ITAR, "foreign person" includes a company incorporated outside of the United States (even if it 100% owned by a company in the United States). 

So, let's say a US citizen is working for a "foreign person,"   when a US company wants to give ITAR technical data to that US citizen as part of that US citizen's job with the foreign person, the US company should consider the US citizen to be a foreign person--the same foreign person as the company incorporated outside of the United States.   

This has significant practical ramifications for larger corporations where one day US citizen Sally is working for the US parent company in Chicago and the next day Sally is working for the US company's wholly-owned subsidiary incorporated in the UK.  One day Sally is an ITAR US person and the next day you need to treat her as an ITAR foreign person.

Now, to complicate things a bit, some companies take the approach that if you give ITAR technical data to Sally while she is in the United States and you are sure she will not export it or make it available to anyone in her foreign person company, maybe there is no ITAR export.  For example, maybe Sally comes to observe a test and absorbs ITAR technical data while doing so.  All she will tell her foreign person employer is "yes it passed the test" or "no, it did not pass the test." It could be that you could make a case that with specific procedures and assurances from Sally that she will never release the tech data to her employer which is a foreign person, then no ITAR export has taken place.  The ITAR is not crystal clear on this and some companies use this interpretation and some do not.


We always have our broker/forwarder present our licenses to Customs at export. What is the difference between that and having it lodged electronically? Is it possible for the exporter to lodge the license with Customs directly? In particular, I deal with DSP-73s mostly.

The DSP-73 must physically, not electronically, be presented to Customs at the time of temporary export and then again at the time the item returns to the United States.  Either you or your forwarder may do it.


I have been told by our DSS Industrial Specialist that one of our employees, who is a lawful permanent resident (from Guatemala), cannot work on the fabrication of components that are used on an ITAR restricted product. We manufacture ITAR and non ITAR controlled products and none of our products are classified. Is this correct?

The ITAR definition of "US person" includes permanent residents of the United States who are from Guatemala.  There are no ITAR restrictions that prohibit a "US person" from receiving defense articles. 

I suggest you ask your DSS person if there are other non-ITAR reasons that the person may not work on the item in question.


When supplying parts directly to the USAF for an FMS Sale is my company (or the machines shops we engage with) required to be ITAR compliant, or is this requirement waived when doing business with the US military?

I am not sure what "ITAR compliant" means. 

  • If you deliver ITAR-controlled parts to the US Air Force in the United States you do not have to get an export license or approval, even if you know the US Air Force will export those parts.
  • If you export ITAR-controlled parts to the US Air Force outside of the United States, you have to have an ITAR export license or approval.  Depending on a great many details you have not provided, an ITAR exemption might apply to your export--get all of your facts and then read the ITAR to find a specific exemption that applies.  If you do not find an exemption, then you must request authorization.  Generally DDTC approves licenses for export to the US Air Force relatively quickly.
  • Regardless of whether you export, any party who produces ITAR-controlled items must register with DDTC pursuant to Part 122 of the ITAR.  You must also comply with the record keeping requirements in Part 122 and any other applicable ITAR requirements.

As you can see, contrary to what common sense might tell you, the fact that you are dealing with the US Air Force generally does not relieve you from complying with applicable elements of the ITAR.  You cannot substitute common sense for the ITAR or for the IRS rules either, for that matter.


If I am shipping one of our products from the US to Canada or another country would the US be the country of origin?

The answer depends on the context in which you are asking this question. 

For the most part, US export controls do not get into the issue of country of origin for items being exported from the United States, except that there are some special rules for foreign origin items being returned to where they came from.  The definition of country of origin may vary from one set of international trade rules to another:  NAFTA rules and the Customs/import/tariff rules of other countries look at country of origin. 

The Foreign Trade Statistics Regulations which govern the submission of Electronic Export Information via the Automated Export System use this definition

Country of origin. The country where the goods were mined, grown, or manufactured or where each foreign material used or incorporated in a good underwent a change in tariff classification indicating a substantial transformation under the applicable rule of origin for the good. The country of origin for U.S. imports are reported in terms of the International Standards Organization (ISO) codes designated in the Schedule C, Classification of Country and Territory Designations.

You did not give us enough information about the items in question to tell you the country of origin for FTSR purposes.  All you told us is it is "one of our products."  Hopefully the above definition will help you make the determination for FTSR purposes.  If you are asking for the purpose of complying with other regulations, you should consult those regulations.


We have three buildings in the same town, all three within a one mile radius, same legal entity for all three.  Two are adjacent buildings on the same side of the same street, let's say 100 X and 101 X for simplicity, and the third, 200 Y, is two streets over, again, all three under the exact same legal entity.  The company is headquartered at 100 X.

For purposes of a DSP-5, and assuming the defense article may travel to all three, would all three have to appear?  Assume for sake of argument, the 200 Y address is not on a DSP-5, is there an argument given that it is in the same town, same legal entity, if the headquartered address is on the DSP-5? 

The 200 Y address is a new addition, so DSP-5s from 2009, 2010 etc. do not include it. Nothing, and I repeat, nothing has been transferred over to this address yet, but in preparation for this eventuality, I am wondering if I need a GC, or whether, given the proximity, same legal entity, etc., there may be some precedent or aspect of accepted practice to use.

The safe answer is to send in a GC asking 1) authorization to move all defense articles you have among all of the locations; and 2) authorization to move all defense articles you obtain the future among all of the locations.  If you get that approved, there will be no doubt.  When you send in your GC, you might want to ask DDTC in the letter to return your application without action if retransfer authorization is not required.

If DDTC were to approve only 1) but not 2), then I suggest you instruct all future US companies applying for licenses to export to you to state in the application that the items are destined for all of your locations.

All of the above assumes a GC is required.  As you probably already figured out, the ITAR is not crystal clear about this issue.  The definition of retransfer includes a change in end user or destination.  Even if an end user or end use does not change, a change in destination is a retransfer which requires authorization.  So, the question is:  Are each of your facilities separate destinations?  My first answer is yes they are separate destinations, because, for example, if you told me to go to building one and I went to building 3, I did not arrive at the proper destination.  If the two buildings were attached to each other, would they be the same destination?  If one building were 5 miles away would it be the same destination?  10 miles?  I err on the cautious side on this and say if a license says 123 Main St. the items may not go to 125 Main St. 

Some companies finesse this issue by using a general description that describes the address of multiple locations (e.g., "PLC Industrial Park" instead of 143 Industrial Park Drive and 523 PLC Avenue).  Particularly in TAAs and MLAs companies will go with something like "PLC Inc., all locations in Montreal and Quebec City," or even "all locations in Canada."  DDTC generally is willing to accept the all locations approach in TAAs and MLAs.  Like I mentioned above, if you instruct your US exporters to address this in their applications, you will be covered for future items if the US exporters are successful.


We design and manufacture thin film electronic components to customer specifications. All our products are EAR 99. If a non US manufacturer requires a circuit to be used in non US aircraft navigation (Foreign Military application), is this under the ITAR and classified as Designed for Military application even though it has no connection to US military applications?

If you are in the United States the ITAR controls many items designed for US or non-US military applications.  The ITAR likely controls a circuit specifically designed for a US or non-US military aircraft.  The ITAR does not distinguish its controls on US military versus non-US military applications.

On the other hand, if you are selling an off the shelf memory circuit that has various commercial applications and you are not modifying it for the military application, it is likely that the ITAR does not control the circuit unless it is super hardened or designed for satellite or space.

 


I am ready to file for a DSP-5 License. I have two questions. First, I need to lodge DSP-5 with the Control Boarder Protection Office at the port of EXPORT; my shipment will be leaving the US. I want to use USPS but they refuse to tell me the port of export it will go to. How can I get this information from them? They know nothing about the ITAR regulations and do not understand. I am under the impression the license MUST be lodged at the exact location it will exit the states. Second, in the ITAR it states that I must file AES AFTER I lodge my license with CBP. CBP has told me that I need to fill out the AES before lodging it with them because they have to have the number assigned to me through AES. Can you help me with these?

Are you exporting hardware, software, or technical data? 

Why do you want to us the US Postal Service?   

If you use the US Postal Service you have to mark the outside of the package with a notice that it contains ITAR items, which may make your package an attractive target for theft.

 


We have a TAA with our foreign customer. Can we take them for a tour in our plant when they visit us in US? Our products are ITAR controlled items.

I can never answer a question about a TAA unless I know what the TAA says and what exports of defense services and technical data are authorized.  Each TAA is unique and it authorizes what it and the DDTC approval says it authorizes.

If your TAA authorizes the export of defense services and technical data that will be exported during the plant tour, then your TAA authorizes the plant tour.  If, for example, your TAA does not authorize the export of defense services or tech data related to testing, then you have to make sure that none of that will be exported during the plant tour.


We are gun manufacturer and exporter in Turkey. We have been asked to produce some gun parts for a US company. We have all export licenses for gun and rifles. We have been asked to be ITAR compliant. As this is our first business with the US, we do not have any information on how to be ITAR compliant. Do we need to be registered with DDTC? If yes how do we apply to become registered with DDTC? What steps are needed?

If you want to comply with the ITAR the first step is to determine how the ITAR applies to your business activities. If you are in Turkey, you do not have to register with DDTC unless you are a broker as defined by the ITAR.

I cannot tell from your question which things you do are controlled by the ITAR. If you have US technical data it may be controlled by the ITAR or the US EAR. The items you produce using that technical data may be controlled by those US regulations. If you have US parts, components, materials, or finished products, those items may be controlled by those regulations.
Asking what you need to do to comply with the ITAR is like asking what you need to do to comply with the tax laws. The answer depends on what you do and many other factors. US regulations are complicated and far reaching and carry severe penalties. You need to understand the ITAR and your business to answer your question. Once you know the ITAR you can determine whether it makes sense for you to get involved in activities that are controlled by the ITAR.

It may be worthwhile for you to attend an ECTI seminar or E-seminar to learn how the ITAR impacts companies outside of the United States.


To support a DSP-5 application, can the end use information that is obtained from our customer be on an email or is a more formal letter document required?

It is ok to get that information in that form. To support your license you will have to get a PO or verification of purchase that identifies the end use, end user, items and value.


If a US Company seconds (transfers) U.S. employees to a Foreign Company and then the Foreign company uses the US personnel to provide a defense service to the Foreign Government are all 3 parties (US CO, Foreign Co, and Foreign Gov.) required to sign the TAA? Or is it sufficient to only identify the Foreign Gov. as an End User in the TAA and the US Company and Foreign Company sign. If the Foreign Gov. doesn't't need to sign, then how will the Foreign Company have authorization to provide a defense service to the Foreign Gov.?

Yes, you can have the US and foreign companies be signatories and identify the foreign government as the end-user.  Just write the TAA and its scope so that it clearly authorizes what you need to have authorized.  If DDTC approves what you request, you have it.


 

What are the prerequisites that must be completed before performing testing and automation on ITAR controlled products? These testing would include parameter configuration as well. Is there a requirement to procure a separate/individual ITAR license or some other process which needs to be completed? If so, what is the procedure to get the same? The geographical area in this context is mainly restricted to Asian countries like India.

The things that require ITAR authorization are the export or transfer of US defense articles to a non-US location for testing. Sending the items for the test would require an export authorization or a retransfer authorization. Such authorizations normally would include authorization for the non-US party to do the testing.


 

I am a US citizen now living in Israel. I also am an Israeli citizen and am employed as a part-time consultant for several Israeli firms who want to do business in the US. I wish to have discussions with US universities, companies and US Government agencies in the US about the potential benefits to them in doing business with the Israeli companies that I consult for. My objective is to get these US entities interested enough to file and obtain TAAs in order to support the kind of technical dialing necessary that will lead to a contractual relationship. My question is: am I still a US Person from an ITAR perspective when I act in this capacity? That is, can US entities have full and open technical discussions with me about the products and capabilities produced by the Israeli companies that I consult for? Or am I considered to be a "broker" and need to register with the DDTC?

If you are not an employee of the Israeli company, you are not a foreign person so the US company may share ITAR tech data with you when you are in the United States because you are not a foreign person.  You need DDTC/ITAR authorization to transfer that data to the Israeli company.

Regardless of whether you are a US or foreign person, if you are not an employee of the Israeli company, then you are most likely an ITAR broker "any person who acts as an agent for others in negotiating or arranging contracts, purchases, sales or transfers of defense articles in return for a fee, commission, or other consideration."


We sell cameras that are ITAR controlled XII(c) that are used for commercial purposes. They are manufactured in Japan. We now have a cable that was manufactured to be specifically used for this ITAR controlled camera. I need to export this cable (only) to Japan permanently. The ITAR, XII(e) states components, parts and accessories specifically designed or modified for the articles in paragraphs (a) through (d) of this category, except for such items as are in normal commercial use.

How do I determine if "except for such items as are in normal commercial use" applies? There have been only 4 sales of the camera since 2001. Would this have any bearing on the determination?

What are the commercial uses/applications of the ITAR camera?  Is the camera integrated or incorporated into a larger item?   Is the cable specifically designed or modified for the camera?  Is the cable used for non-ITAR-controlled items?


I do not really know if ITAR is retroactively applicable….? What is happening if a product is not ITAR but suddenly the Regulations are changing and it becomes an ITAR product? Do we have then to ask for a license for the products that we already sent to another country? And for the products related to a current project?

If an item (hardware, software or technical data) were to be added to the US Munitions List, ITAR control generally becomes effective on date of publication of the rule in an official US Government journal known as the Federal Register. For example, if you have an item in Switzerland, it would now be considered ITAR-controlled, meaning that a reexport or retransfer of the item would require prior US Department of State authorization (either an exemption or more likely a license / general correspondence). This would include items made in Switzerland which incorporate the newly-ITAR-controlled item, unless State makes a special policy for that scenario.


We procured an ITAR item for a specific project and for a specific product. The license is quite generic only referencing the item numbers but does not mention or list the single serial numbers of each single piece. These serial numbers are only listed in the delivery note (delivered with the export license) coming from the supplier. Are we allowed to deliver the quantity referenced in the export license but exchanging/mixing the serial numbers? We would like the deliver the "older hardware" before we deliver the newest ones.

Yes, unless there is a proviso to the license which states otherwise.


Who shall apply for importation into the US regarding our own product (a military equipment for example)? The Switzerland company or the US client?

Generally, the importer. This may be the US client. It could be a subsidiary in the US of the Switzerland company. It is unlikely to be the Switzerland company.

The ITAR only applies to temporary imports of items on the USML. Permanent imports into the US are regulated by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). ATF has its own control list, the US Munitions Import List (USML). The USML is a shorter subset of the USML. For example, items controlled in Category XV -- Spacecraft Systems and Associated Equipment on the USML are not included on the USML, meaning that their import into the US does not generally require a license.


Denied trade screening is the process of screening those parties involved in an export transaction for the purpose of complying with the safety standards of the U.S. Government. Do we need to screening the domestic shipments and domestic customers and suppliers?

Parties on certain lists may not be involved in or benefit from exports, either directly or indirectly.  If, for example, you export products made by a party subject to an EAR denial order, you likely would violate the EAR.


If one company with the word "electronic" or "chemical" always fails for Denied Party Screening, what usually can you do? Can you setup a company file not to screen these words?

You may set up your denial screening however you want.  You may choose words for your screening algorithm to ignore. Of course, if a listed party has a name that consists only of words you are ignoring, your screening algorithm will not catch it.


Can a U.S. person who is a superuser for a company that is registered with the State Department file for a DSP-5 export license while outside the United States (on long term business in Canada)?

The ITAR does not prohibit you from doing so.  As long as you can get into the DTrade system, you may do it.


My company exports technical data under DSP5 licenses and often my customer asks for a copy of the license. I was under the impression we were not permitted to give them this (learned this from a Customs Dept. seminar, I thought) but perhaps that is not true?

The ITAR does not prohibit you from showing a copy of your DSP-5 to another party.  If the license has a proviso that says you may not show the license to another party then you must comply with that proviso.  If the license itself, contains actual technical data not authorized for export (an unlikely scenario), then you may not show that to a foreign party.


Our sales department has trouble getting Ultimate Destination and End User information from our customers. The customer sometimes only provides Ultimate Destination. Some of our customers are afraid that we will go directly to their customer and steal their business - therefore - they do not provide it. If we ask - but they do not provide the information - can we proceed with those Export Orders? Did we do our due-diligence?

The export regulations generally do not require that you obtain end user and end use information.  Many companies ask for this information and some companies do not--for example, you can imagine that a company that sells 10,000 consumer products per day directly to end users does not request such information but a company which sells sensitive electronic test equipment may ask.  Whether you ask for end use and user information is your company policy decision.

You need to assess the risk level of your items under the regulations and establish your company policy based on that.   Once you establish your company policy you should always follow that policy.  For example, if you sell coffee cups you probably will not ask for end use and user information but if you sell No License Required microwave components with commercial and military applications, maybe you will ask for such information when you sell direct to users and when you sell to resellers you will require the resellers to sign an agreement that they will comply with applicable US export and reexport control regulations when they resell your products.


My company exported an electronic component with an ECCN of 3A001.B.2.D without a license. What should we do to fix this ?

I am not sure what you are asking.  The export classification you mentioned requires an export license only for certain countries and not for others.  An export license may also be required because of the parties involved in the transaction or the end use and end user.  The ECCN alone is not enough to determine if an export license is required.

You need to carefully analyze the regulations to determine whether an export license is required for a specific export because violations of the regulations may result in serious penalties.


We are out of the USA startup company that has developed an electronic device, which includes both hardware and software. Our prospect customers are large electronic consumer goods manufacturers. Our business model is selling software licenses per piece in the following manner: The customer manufacture the actual device as per our spec, and then burn the software on a chip processor on that device. Practically, we sell the customer the chip with a small program already burned on it. Once the chip installed on the device (during the production process) it goes through a second burning stage of the software we developed. Since the software can be burned only on chips we sold the customer, we know exactly how much to charge the customer. A well-known US manufacturer in the USA makes the chips we sell. This is a catalog, off-the-shelf chip, which carry an ECCN of EAR99. That means no export restrictions. However, we ask the American manufacturer to add that little software on it, which cause the chip two things:

1. This is specially made for us and therefore, not off-the-shelf product, anymore.
2. It will have a different marking on it (our part number and logo), and therefore cannot be identified with the original chip.

The manufacturer claims that we have to provide him the proper ECCN number. He refuses to suggest the number himself to avoid any liability, should BIS apply export restrictions. I have gone two days through the BIS site and even started to fill an application to get an ECCN. However, I am not sure this is the best thing to do. I am not even sure that I should do the application rather than the chip manufacturer. My goal is to keep the EAR99 number. Please advice.

I understand you are having difficulty determining the export classification.   You need to determine precisely how the US Munitions List (USML) or Commerce Control List (CCL) apply to your product (or if it is nuclear related, perhaps other regulations).  It is impossible to tell you the classification without analyzing the technical details of the item.  If you have the technical details you can compare them to the USML and CCL, which can be a difficult and is a time consuming task.  Alternatively you could ask for advice and assistance from someone else but we do not have all of the technical details here so we cannot provide the export classification.


Can a part used on a military aircraft be classified non-ITAR if a similar part (same material/processes but different size) is used on a commercial aircraft? Is there a way to "de-classify" them as non-ITAR?

The best option is to request a Commodity Jurisdiction Determination from DDTC.


Provided shipping documentation with approved license number and TAA (DSP-5) to FedEx, but FedEx cannot ship because there is no record of license in system. License was approved over one month ago by DDTC. What has to be done to ship?

I assume you lodged the DSP-5 with CBP.  If yes, I suggest you contact the Rapid Response Team at DDTC to see if they can fix it.


I have an item that is classified USML XII(e). We are shipping it to a U.S. Military Agency in Pennsylvania. We know that the item will be shipped again by the U.S. Military agency to a U.S military base in the U.K. Am I responsible for obtaining a license since I know the ultimate destination or is it the Military Agency responsibility since they are doing the foreign shipment?

The responsibility for compliance falls on the shoulders of the party making the export.


I have a DSP-5 in place to ship units to an international customer. Do I need to ship the entire order at once or can I ship a partial fulfillment with the remainder to follow within the 4 year limit? Also, if the customer requests "spare parts for R&R" do I need ship with the units or can I hold and ship as needed (within 4 yr window)?

You may make as many shipments during the validity period as you want as long as you export the items shown on the approved license and you do not exceed the approved quantities and values for the items.


When a manufacturer cuts commercially available materials (e.g. aluminum tubing, adhesive skin for cargo pallets or tamper wrap for printed circuit cards) to fit the specific dimensions of a defense article that is being manufactured (e.g. Category VIII(h) cargo pallet or Category XIII(b) circuit card), is the manufacturer considered to have "configured, adapted or modified" the tubing, skin, or wrap for a military application? Or, are the cut pieces of tubing, skin or wrap considered to reveal technical data (i.e. dimensions) about the ITAR-controlled pallets or circuit cards such that tubing, skin or wrap cut to those specific dimensions are also deemed to be defense articles?

The key with whether any paragraph in any USML Category controls your item--that is the issue more than the generic issue of whether you configured, adapted or modified it for a military application.  

Category VIII(h) controls parts, components, accessories, associated equipment, etc.  "Specifically designed or modified" for one of the items listed above in Category VIII such as military aircraft, for example.  If aluminum tubing is cut specifically so that it is a unique shape to be used as a part of an item controlled in Category VII, then Category VIII(h) may control it (because you modified it for a Category VIII item).  The Note following VIII(h), overrules the apparent VIII(h) control because it says that if the exact same item FAA certified for use in a commercial aircraft it is not controlled by VIII(h).

If your tubing appears to be controlled by VIII(h) you should consider submitting a Commodity Jurisdiction (CJ) determination to DDTC according to the CJ guidelines on the DDTC website.  Recently it seems like DDTC has been giving exporter-favorable rulings for simple items even if they are specifically modified for a Category VIII item.

I am not sure what you mean by skin or wrap, but the key is to see if there is any paragraph in any USML Category that describes and controls them.

When a manufacturer cuts commercially available materials (e.g. aluminum tubing, adhesive skin for cargo pallets or tamper wrap for printed circuit cards)to fit the specific dimensions of a defense article that is being manufactured(e.g. Category VIII(h) cargo pallet or Category XIII(b) circuit card), is the manufacturer considered to have "configured, adapted or modified" the tubing, skin, or wrap for a military application, or, are the cut pieces of tubing, skin or wrap considered to reveal technical data (i.e. dimensions) about the ITAR-controlled pallets or circuit cards such that tubing, skin or wrap cut to those specific dimensions are also deemed to be defense articles?


Can I send a copy of a DSP-5 to the end user?

Yes, in most cases the ITAR does not prohibit you from sending a copy of the DSP-5 to another party. 

I can think of two key exceptions.  First, in the unusual case where a DSP-5 has technical data in it, you may not give the DSP-5 to any foreign person not authorized to receive the DSP-5.  In this case I am not talking about a license that says "Tech data to repair and F-15," but a license that has the actual tech data in it. 

The second exception is in the case where your license has provisos that state that you may not reveal the provisos (or a copy of the license) to another party.


We have a DSP-5 to export an assembly to Canada, if we have to ship the assembly less one of the components, can we ship the missing component under the same DSP-5 at a later date? Or, is there an exemption that would apply?

A DSP-5 does not limit the number of shipments you make.  It limits quantity, dollar value and items.

If the component you are exporting separately is not mentioned on your license application, then the Customs guys will have trouble matching your license with that item.  You should contact Customs at the port of export in advance and ask them how to present and describe the export to them so they will be able to allow it.


We are a company that buys and re-sells electronic components, most of the components are made in China, Singapore, Mexico etc. Are those components controlled by EAR and ITAR if they are not a USA part and the OEM in the other countries do not have a classification for them?

Whether these items are controlled by US regulations depends on the details.  There is not one answer. 

They may be controlled if they incorporate US-origin parts, components or materials.  They also may be controlled if controlled US origin technical data or technology was used to design or produce them.  In both cases you have to know all of the details of the US-origin content or technology involved. 

Whether the OEM has a classification has nothing to do with whether they are controlled.


We have a DTC issued hardware license for a USML item. A component of that USML item is being purchased from a company located in the same country to which the USML item is to be exported. We did not know at the time of the contract or license request. This item also may be able to be sent directly from that foreign company to the location in the country to which the USML item is to be delivered, it does have to be integrated into the USML item until all components are located at the final site. What is the correct procedure for handling this component?

The first step is to determine whether the item is subject to ITAR jurisdiction. 

If no, you do not have to get ITAR authorization unless there are ITAR brokering issues.

If yes, generally speaking, the primary responsibility for obtaining authorization under the ITAR lies with the company that is sending the item.  If there is no ITAR exemption available (for example, 123.9(e) exemption) then written authorization must be obtained from DDTC.  In most cases, a General Correspondence request for retransfer approval would the type of written authorization to request from DDTC per 123.9(c).  


Is there a document that specifies how to document markings that are to be implemented on technical drawings that are either EAR or ITAR products? I am referring to design schematics and PCB assembly prints for PCB's that are ITAR/EAR products.

The Export Administration Regulations (EAR) would be the document for tech data subject to the EAR and the International Traffic in Arms Regulations (ITAR) would be the document for tech data subject to the ITAR.

The EAR normally does not require that you mark documents in a specific way in all cases.  If you use an EAR license exception or license that requires that you make certain notices to the other parties or obtain written documents from them, you do what the license or license exception says to do.  In certain cases the EAR requires that you put a destination control statement (Part 758) on the invoice and airway or bill of lading for certain exports.

For ITAR tech data, if you use an exemption you follow these requirements to mark data or the package it is in:

§ 125.6 Certification requirements for exemptions.
(a) To claim an exemption for the export of technical data under the provisions of this subchapter (e.g., §§125.4 and 125.5), the exporter must certify that the proposed export is covered by a relevant section of this subchapter, to include the paragraph and applicable subparagraph. Certifications consist of clearly marking the package or letter containing the technical data “22 CFR [insert ITAR exemption] applicable.” This certification must be made in written form and retained in the exporter's files for a period of 5 years (see §123.22 of this subchapter).
(b) For exports that are oral, visual, or electronic the exporter must also complete a written certification as indicated in paragraph (a) of this section and retain it for a period of 5 years.

The ITAR does not specify similar requirements for license exports but many companies apply the requirements for exemption exports to license exports too. 

In addition, certain exemptions in the ITAR may have their marking requirements and any DDTC written approval (agreement, license. or GC) may impose marking requirements.

In addition, many companies go beyond ITAR requirements and put statement on all ITAR or EAR controlled technical data, regardless of whether or how they are going to export it.  A sample statement would be "This document contains technical data controlled by [insert one of these:  The US Export Administration Regulations or The US International Traffic in Arms Regulations] with the classification of [insert ECCN and paragraph or USML Category and paragraph].

Some companies use completely useless statements such as "The document may contain technical data subject to the EAR or ITAR."


 

If I obtained an export license for company “A” in UK and that company was acquired by another company (material change under EAR 750.7c). Can I continue to export under a previous license until a replacement license is obtained?

Good question.  Based on my analysis, Company “A” is now a different entity (e.g., formerly owned by a British company but now owned by the Government of China or Iran, etc.).  I would request a replacement license to reflect this change, or speak with my BIS licensing officer about the situation if he/she says a replacement license is not required I would get them to put that in writing.


Our TAA includes a statement authorizing foreign signatories to transfer our ITAR-controlled hardware and data to the other foreign signatories and sublicensees. We do this to cover new signatories and sublicensees who need access to hardware/data which was exported through DSP5s before they were added to the TAA. We now have a new foreign signatory who does not believe this TAA statement allows them to access previously-exported hardware because they are not listed on the DSP5 licenses. The DSP5s are all in furtherance of the TAA and the end use is not changing. Do we have to submit a GC to cover them on older licenses or should the TAA statement cover them?

I cannot tell what the "TAA statement" or the DSP-5 covers without reading the applications, agreement and approval letters. The TAA statement and your DSP-5s authorize what you requested in your applications minus any limitations imposed by DDTC in the approval letters' provisos and conditions.


Can our company ship ITAR and NONITAR units together (in one shipment vs. two separate to the same customers and destination)?

It is not a violation to do so, but it can make things quite complicated when it comes to your export EEI filings and your export documents.


If something is de-classified from the ITAR, how does this impact control on previous shipments for the same part. Do they become EAR or EAR 99 by default?

If something is not controlled by the ITAR, it does not get a default classification in the EAR.  It could be EAR99 or any of the specific ECCNs in the Commerce Control List.  You have to look it up and determine its classification.


After a TAA has expired what do we do with the technical data that has been received. Can we just delete it off our servers if it is no longer required?

Permanently deleting and destroying the technical data is a reasonable approach as long as the TAA and the DDTC approval letter and provisos do not require anything to the contrary.  I suggest you notify the TAA applicant of your plans and document what you have done.


What exemptions are there to ship defective electronic products for repair from a US company located in USA to a Canadian company located in Canada and after the repair is done the items are returned back to US? Repair period would not exceed one month and assumption is those items are ITAR controlled.

The Canadian export exemption in 126.5(b) is the first exemption that comes to mind, provided your transaction complies with all of the requirements.


Item “A” is designated as an ITAR item. This Item “A” is damaged; parts are removed and it is not operable. Is this item “A” still a designated ITAR item even though it is considered junk now?

In many cases Item A is still an ITAR item, but to some extent it could depend on the actual facts.  For example, if Item A is a battleship and you take out the motor and steering related items, it is still an ITAR item.  On the other hand, if item A is a commercial jet that is ITAR controlled because it is equipment with military radios and radar, and you take all of those items out and their specialized interfaces and connectors, etc., item A might cease to be an ITAR item.


A SINCGARS radio is certified by The States Department as an ITAR item. If a part from this radio (circuit board) which has not been certified individually as an ITAR item is taken out of the radio and sent to Canada for repair and returned back in to USA after the repair, does the exporter need a special license to send this circuit board to Canada for repair or is it considered a commercial item or EAR99?

In many cases the ITAR controls parts or components specially designed or modified for other ITAR controlled items.  We do not have sufficient facts to know in your case.  If the item you wish to export is ITAR controlled, you might want to take a look at the Canadian exemption to see if that is available for your export to Canada.  See 126.5.


Employee X is a naturalized US Citizen and works for US company A. Employee X moves to Turkey to run a 100% wholly owned subsidiary (company C) of US company A. Employee X does really well and is promoted to VP. Subsequently, employee X oversees US company B while residing in Turkey. US company A & B work on ITAR products. Can employee X have access to ITAR items if they are paid by US company A but reside or stay in Turkey majority of their work year? Can employee X have access to ITAR items if they are paid by company C and reside or stay in Turkey majority of their work year? Where is this specific guidance in title 22 cfr?

Exporting defense articles to employee X in Turkey is an ITAR export regardless of who employs (pays) employee x.

1) Your first question is "Can employee X have access to ITAR items if they are paid by US company A but reside or stay in Turkey majority of their work year?"   The exemption in ITAR 125.4(b)(9) authorizes a US company to export technical data to its US person employees in Turkey if the technical data is intended to be used only by the US person employee.  If that exemption is not available, in most cases DDTC approval is required.

2)  Your second question is "Can employee X have access to ITAR items if they are paid by company C and reside or stay in Turkey the majority of their work year?"  In this case the above referenced exemption would not apply because employee X is not employed by the US company.  Exporting defense articles to employee X in Turkey normally would require DDTC approval. 

Part 120 of the ITAR defines company C to be a foreign person if it is incorporated in Turkey.  In many cases a US citizen who is an employee of a foreign person company should be considered a foreign person too because he/she works for, is employed by, and represents a foreign person so giving ITAR technical data to that person is the same as giving it to the foreign person.  When you consider employee X to be a foreign person in this scenario, releasing technical data to employee X in the United States would be an export (see ITAR definition of export) and would normally require DDTC approval.  It may be possible that in certain cases giving technical data to employee X in the United States would not be an export, but unless there are special circumstances, it normally would be an export.


We have a US vendor who manufactures our ITAR component at its off shore facility. Our PO and interaction is only with the US location. The US vendor has advised it has a TAA in place to exchange build to print information between it and its foreign facility. The US vendor also just received a DSP 5 to extend the authorization to include ANY data, regardless of who it belongs to, to its FN affiliate to make and ship parts back to the end customer. Does this seem correct to you? I thought all parties had to be specifically named, and if our ITAR data was being transferred, we would need to be specifically named on the TAA or license?

It is certainly possible that the US company has a license and a TAA that allows it to export your technical data.  I cannot verify whether it is actually true without seeing the approvals.


I'm a permanent resident of the U.S, and have been for 15 years. I work in aviation (I make composite parts) and we are about to apply for ITAR certification. I’m working on becoming a U.S citizen, in the next year I should have finished my citizenship. Will this keep me from getting ITAR certified?

There is no such thing as ITAR certification or ITAR certified.  If you send your registration application and the required money to the State Department, you maybe get the required ITAR registration as a manufacturer or exporter of defense articles.

If you have US permanent resident alien status, you are a US person for ITAR purposes.


I want to take some equipment on the USML (category XI (a)(5)) to a trade show in Washington DC. What restrictions do we have on this equipment and do I need to file documentation? There will be foreign attendees at the conference.

There are no ITAR restrictions for trade shows in the US open to the public.  "Public domain" applies to published information (tech data) released at such trade shows in the US so you do not have to worry about the brochures, catalogs and other documents that anybody can pick up at your booth.  What you have to worry about is if your company releases ITAR technical data to foreign persons during discussions or otherwise, or if your company provides ITAR tech data that is not public domain to foreign persons.


If a foreign company sends U.S. origin equipment to a U.S. company for repair, a Technical Assistance Agreement is required for the U.S. Company to perform the repairs, which are a defense service, for the foreign company.  Is this correct?

The act of repairing a defense article (regardless of its origin) in the United States for a foreign person is a defense service.  That requires authorization.  Authorization normally would be either a TAA or an exemption such as, for example, the Canadian defense service exemption in 126.6 or NATO+ service exemption in 124.2(c).


I have several defective rifle scopes; the factory in China told me to ship them back for repair or replacement. Are there any restrictions I need to be aware of when shipping them out of the US?

This is a good question.  Good thing you asked instead of using common sense and assuming that since you can send the Chinese scopes back to China. 

Rifle scopes manufactured to military specifications are on the US Munitions List (USML) and you generally may not export them to China.  Rifle scopes that incorporate any item on the USML may also be on the USML and prohibited for export to China.  See the International Traffic in Arms Regulations at 22 CFR Parts 120-130.

Other rifle scopes fall under the jurisdiction of the Export Administration Regulations (EAR, 15 CFR Parts 730-770) and are likely classified as ECCN 0A987.  You may want to check 0A987 to verify it controls your scopes. 

We will assume the scopes are 0A987.  License Exception TMP in EAR 740(b)(3) often is available in this type of situation for many items controlled by the EAR.  In your case, you may NOT use TMP because EAR 740.2 prohibits the use of license exceptions for exports to China of items controlled for CC (Crime Control) reasons.  ECCN 0A987 is controlled for CC reasons. 

You may not export the scopes to China unless you obtain an export license from the Bureau of Industry and Security in US Department of Commerce.


In 125.4 (c)(1) or (c)(2) - must the exporter of the technical data have a direct contract with the Department of Defense or can the information be related to a current bid request that is being worked on by a military OE? I.E. we export the specifications provided by a vehicle manufacturer in order to have a sister company design the appropriate part for the application.

There is no requirement that you have a contract.  The export, however, must be pursuant to an official written request or directive from an authorized official of the US DOD.  The purpose of the export has to be to respond to a written US DOD request for a quote or bid proposal.


We have been invited to give a technical presentation at a classified US Government-sponsored workshop in the US. Attending will be representatives of the UK, Australia, Canada, and, possibly New Zealand. How do we ensure ITAR compliance?

First you have to determine whether anything you will release is controlled by the ITAR.  If it is, then you have to make sure you have an ITAR license or exemption for each foreign person who attends the training.  There are too many possible scenarios to give more advice without knowing all of the details. 

You should also determine whether you have any NISPOM issues.


If an item or technology has military design intent and is military in terms of national law ex:(Polish law), will it become ITAR if exported to USA or ordered from USA?

If an item, regardless of its country of origin, is described on the US Munitions List, it is subject to the ITAR while it is in the United States and exported from the United States.


What is the process for the exporter if a defense article that is in use overseas under a DSP-73 temporary export license is broken/destroyed and is not recoverable?

I suggest you send a general correspondence letter to DDTC explaining the situation and requesting authorization not to return it to the United States.


We have a customer who wants us to make a part for them. They stamped that it must be ITAR compliant. Can we purchase the part that they need from China using our drawing with a different part number and bring it into the states to sell to our customer?

The part number you put on something has no impact on its export control status.  You need to determine the jurisdiction (EAR vs. ITAR) of the item and the item's specific classification.  The ITAR stamp may mean it is ITAR controlled but you want to validate that.  If it is ITAR controlled or if it is EAR controlled for China, you would need to get an export license for the drawing.


My company is a large software firm. We have over 24 different software products and some of them are being used by US military contractors for purposes of managing and building ITAR related products. We have an ITAR program in place to keep technical data from transferring to our offshore support teams from our customers, however do we need to also license our software for ITAR since it is being used by DOD contractors?

The end use of your software does not determine whether it is controlled by the ITAR.  A wide range of non-ITAR software is used to design and produce ITAR controlled items. 

You need to read the US Munitions List and see if it controls your software.  If your software is on the USML, it is ITAR controlled, even if it is used to make kitchen tables because end use does not matter.  It is the performance capabilities, functions, and things such as embedded design rules for ITAR items that you need to look at to determine if your software is on the USML.